Park and Minister for Immigration and Citizenship
[2010] AATA 886
•11 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 886
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1581
GENERAL ADMINISTRATIVE DIVISION ) Re Eun Gyeong Park Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Senior Member Jill Toohey Date11 November 2010
PlaceSydney
Decision The decision under review is affirmed.
.................[sgd].............................
Senior Member
CATCHWORDS
CITIZENSHIP – refusal to grant citizenship – applicant aged 14 years – best interests of the child – applicant wished to continue education – whether applicant’s circumstances exceptional or very unusual – parents’ financial difficulty – Tribunal not satisfied applicant’s circumstances warranted departure from policy that permanent residence a requirement for conferral of citizenship – decision under review affirmed
Australian Citizenship Act 2007, ss 21, 24
Choi v Minister for Immigration and Citizenship (2008) 104 ALD 117
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Kenneth Budilay and Kellen Budilay and Minister for Immigration and Citizenship [2010] AATA 850
Kim and Minister for Immigration and Citizenship [2010] AATA 197
Kim and Minister for Immigration and Citizenship [2010] AATA 198
Re Raisani and Aryantie and Minister for Immigration and Citizenship [2008] AATA 640
Yun Seon Pak and Department of Immigration and Citizenship [2010] AATA 157
REASONS FOR DECISION
11 November 2010 Senior Member Jill Toohey Background
1. Eun Gyeong Park was born in South Korea. In February 2001, when she was four years old, she and her parents came to Australia on tourist visas. They stayed for several days then returned to South Korea. They returned to Australia in April 2001 and, other than returning several times to South Korea, they have lived here since.
2. Since 2005, Ms Park and her father have held student visas as dependents of her mother, who is studying nursing. Her mother’s visa will expire on 15 March 2011.
3. Ms Park is now 14 years old and in Year 9 at a Catholic secondary school. She hopes to complete her secondary schooling in Australia and go on to university.
4. On 5 November 2009, Ms Park applied for Australian citizenship. A delegate of the Minister for Immigration and Citizenship (the Minister) decided that, although she met the relevant legislative requirements, she did not satisfy the policy requirements for conferral of citizenship on a person of her age. Ms Park seeks review of that decision.
The legislation
5. An application for citizenship is made under s 21 of the Australian Citizenship Act 2007 (the Act). Generally, a person must be a permanent resident, and must satisfy the eligibility criteria applicable to him or her.
6. When Ms Park made her application, s 21 (5) provided that a person was eligible to become an Australian citizen if the Minister was satisfied that she or he was under 18 at the time of her application.
7. The Minister must, in writing, approve or refuse an application and may refuse to approve an application despite a person being eligible in accordance with the Act: s 24 (1) and (2).
The policy
8. The Act does not specify how the discretion to refuse an application for citizenship should be exercised. Guidance is found in the Australian Citizenship Instructions (the Instructions) as issued from time to time. The Tribunal should apply the Instructions unless there are cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
9. The 2007 Instructions applied at the time of Ms Park’s application. In relation to s 21 (5) generally, they stated that the discretion to refuse an application despite the person being under 18 would usually be exercised where the person does not meet the policy requirements; in making such decision, the primary considerations are the legislative requirements, the best interests of the child and the relevant policy guidelines.
10. In relation to applicants under 16 in particular, the Instructions stated:
Children under the age of 16 applying individually in their own right would usually be approved under s 24 if they meet the following policy requirements:
§hold a permanent visa, including an adoption visa; and
§are under 16 years of age when applying, are living with a responsible parent, who is an Australian citizen and consents to the application, or
§are under 16 years of age when applying, are living with a responsible parent, who is not an Australian citizen and consents to the application, and the child would otherwise suffer significant hardship or disadvantage or (see Attachment B - significant hardship or disadvantage for definition); or
§are under 16 years of age when applying, and in the care of another person, such as a relative, who consents to the application, and the child would otherwise suffer significant hardship or disadvantage or
…
In the case of an applicant who does not meet the policy requirements above, decision makers must consider the full circumstances of the case, including the best interests of the child, to determine whether the application nevertheless warrants approval because of the exceptional nature of those circumstances. The circumstances would need to be very unusual to warrant approval of an application outside policy.
11. The Instructions adopted the following definitions of significant hardship or disadvantage from the Macquarie Concise Dictionary:
significant of consequence; important or momentous
hardshipconditions of life difficult to endure; something that causes suffering or privation
disadvantage an unfavourable circumstance, thing, person; injury, loss or detriment
and stated that an applicant would normally be required to show some or all of the following circumstances:
§inability to gain employment on the grounds that the employment is restricted to Australian citizens and that comparable alternative employment is not available
§difficulty of international travel because the person cannot obtain a passport from their country of nationality/citizenship, or are unable to use a passport issued by that country for safety or similar reasons
§academic (eg. research, academic scholarship) or other (sporting etc) potential is being limited or restricted, because the opportunities to reach that potential is available only to an Australian citizen, to the extent that it causes significant hardship.
Ms Park’s circumstances
12. Ms Park concedes that she does not hold a permanent visa and so does not meet the policy requirements in the Instructions. However, she submits that she would suffer significant hardship and disadvantage if returned to South Korea and that it is in her best interests to remain in Australia.
13. Ms Park’s parents came to Australia hoping to start a business but lost everything when they were defrauded by a man who encouraged them to go into business with him. They went back to South Korea and sold everything to pay the debts incurred in Australia. They returned to Australia with financial support from Ms Park’s aunt, but that support has come to an end and they are now in very difficult financial circumstances.
14. There are no other members of the family in Australia. Ms Park has elderly grandparents in South Korea. She only remembers her other relatives from photographs.
15. Ms Park’s mother works part-time while studying nursing. Her father is a freelance media producer but has been unable to find work and works as a freelance wedding photographer. Last financial year, her mother earned approximately $7000, although she hopes to earn more in the coming year. Her father’s visa precludes him from working more than 20 hours a week and he earned almost nothing. As well as rent and usual living expenses, they pay Ms Park’s annual school fees of approximately $11,000. They rely on the help of friends and members of their church and have a combined credit card debt of approximately $50,000. They are behind in their rent and have been issued with a notice to quit.
16. Ms Park wants to complete her secondary schooling in Australia and hopes to study medicine or music at university. Her music teacher says she is a talented musician. She has submitted material about the intensely competitive nature of tertiary education in South Korea and says she would be disadvantaged if she had to return there because her lack of Korean language skills. She has been educated in English since the age of five; she knows only basic words in Korean and could not carry on a conversation with people there.
17. Ms Park says she has grown up here, her friends are here, all her education has been here, and she is an active member of her church. She regards herself as Australian. She has no ties to South Korea.
18. It is submitted for Ms Park that it is in her best interests, as a child, to remain in Australia and complete her education. It is submitted that she would become eligible, if a citizen, for a scholarship to help with school fees, and she would be eligible for the Higher Education Loan Program to assist with tertiary education and would not be subject to the high fees imposed on overseas students.
The Minister’s submissions
19. The Minister does not dispute that Ms Park is attached to Australia and would find it difficult to live in South Korea. However, he contends there is nothing exceptional or very unusual about her circumstances such that warrants departure from the policy that permanent residence is a requirement for citizenship because the difficulties she faces are the same as anyone would face in her circumstances.
20. Moreover, the Minister submits, there is nothing to suggest that Ms Park would be required to return to South Korea during the period of her current visa or when it expires, and nothing adverse would flow from refusing her application. She would be entitled to apply for further visas, whether a student visa in her own right, or as the dependent of one of her parents, and there is no evidence that such application would be refused.
Consideration
21. The Instructions identify Ms Park’s best interests and the policy requirements as the primary considerations in her case. The policy requirements provide that consideration must be given to her full circumstances, including her best interests, to determine whether their exceptional nature means that approval of her application is warranted. So, while “full circumstances” is a broad expression that should be interpreted flexibly, the emphasis remains on their exceptional nature as a ground for departing from the usual application of the legislation and policy.
22. As the Tribunal noted in Kenneth Budilay and Kellen Budilay and Minister for Immigration and Citizenship [2010] AATA 850, there is substantial overlap between a child’s best interests and any significant hardship or disadvantage she or he would suffer if refused citizenship.
23. The nature of an applicant’s ties to Australia is a matter that the Tribunal has regarded favourably in some cases: see, for example, Re Raisani and Aryantie and Minister for Immigration and Citizenship [2008] AATA 640 and Choi v Minister for Immigration and Citizenship (2008) 104 ALD 117.
24. In contrast, in Budilay (above) the Tribunal distinguished the applicants’ position from those in Raisani and Choi. In particular, it noted that the Budilay siblings had no Australian relatives, only family friends, and they were not of an age to live independently (they were 15 and 13).
25. There can be little doubt that Ms Park would face some hardship and disadvantage if she had to leave Australia and make a new home in South Korea. She would have to leave the place where she has lived most of her life and return to a place where she has few ties.
26. I accept that education and employment in South Korea is very competitive. Ms Park’s lack of proficiency in the language would almost certainly present an obstacle, and could disadvantage her in education and employment, at least until she became proficient in the language. Indeed, any student trying to fit into an education system with a different language would likely face real difficulties.
27. On the other hand, those are difficulties that anyone would face who has spent most of her life here. In Yun Seon Pak and Department of Immigration and Citizenship [2010] AATA 157, Deputy President Buchanan affirmed a decision to refuse Ms Pak citizenship. He noted (at [10] and [11]) that the principal submission advanced for Ms Pak relied on her virtually unbroken residence in Australia, that she had completed all her schooling here and had formed close personal ties here. The Tribunal reached a similar conclusion in Kim and Minister for Immigration and Citizenship [2010] AATA 197 and Kim and Minister for Immigration and Citizenship [2010] AATA 198. In each case, the Tribunal was not satisfied those matters constituted very unusual or exceptional circumstances, and I agree.
28. It is relevant that there is nothing pressing about Ms Park’s circumstances at present. I accept that she wishes, and it would be in her best interests, to continue her education in Australia. However, she is not presently at risk of removal and there is no evidence to suggest that she cannot apply for a further visa when this one expires. There is nothing to suggest that her best interests would be adversely affected by the refusal of this application. There is nothing to suggest that she cannot continue to live here and, eventually, apply for permanent residence and citizenship. Nothing about this decision will preclude her from making a further application.
Conclusion
29. I accept that Ms Park’s parents are in a very difficult financial situation. They have made considerable sacrifices in the interest of her education. However, the fact that it would be financially advantageous for her to acquire citizenship – because she would be eligible for a secondary school scholarship and would not have to pay higher university fees as an overseas student – is not very unusual or exceptional and it is not a reason to confer citizenship.
30. I affirm the decision under review.
I certify that the 30 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill TooheySigned: .........................[sgd].....................................................
Diana Weston AssociateDate of Hearing 29 October 2010
Date of Decision 11 November 2010
Representative for the Applicant Mr Jacob Jang and Mr Robert Lau, Jacobs Legal
Representative for the Respondent Mr Greg Johnson, DLA Phillips Fox
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